(HC) LeBlanc v. Johnson ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTOINE LeBLANC, No. 2:20-CV-1475-JAM-DMC-P 12 Petitioner, ORDER 13 v. 14 JOHNSON, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate 19 Judge pursuant to Eastern District of California local rules. 20 On September 30, 2021, the Magistrate Judge filed findings and recommendations 21 herein which were served on the parties and which contained notice that the parties may file 22 objections within the time specified therein. No objections to the findings and recommendations 23 have been filed. 24 The Court has reviewed the file and finds the findings and recommendations to be 25 supported by the record and by the Magistrate Judge's analysis. 26 Pursuant to Rule 11(a) of the Federal Rules Governing Section 2254 Cases, the 27 Court has considered whether to issue a certificate of appealability. Before Petitioner can appeal 28 this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P. 1 22(b). Where the petition is denied on the merits, a certificate of appealability may issue under 2 28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a 3 constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of 4 appealability indicating which issues satisfy the required showing or must state the reasons why 5 such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on 6 procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that 7 jurists of reason would find it debatable whether the district court was correct in its procedural 8 ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid 9 claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir. 10 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 1604 (2000)). For the reasons 11 set forth in the Magistrate Judge’s findings and recommendations, the Court finds that issuance of 12 a certificate of appealability is not warranted in this case. 13 Accordingly, IT IS HEREBY ORDERED that: 14 1. The findings and recommendations filed September 30, 2021, are adopted 15 in full; 16 2. Respondent’s motion to dismiss, ECF No. 15, is granted; 17 3. The Court declines to issue a certificate of appealability; and 18 4. The Clerk of the Court is directed to issue judgment and close this file. 19 20 Dated: December 20, 2021 /s/ John A. Mendez 21 THE HONORABLE JOHN A. MENDEZ 22 UNITED STATES DISTRICT COURT JUDGE 23 24 25 26 27 28